|Criminal Justice Bill - continued||House of Lords|
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Clause 195: Curfew requirement
488. This clause re-enacts, with some modification, section 37 of the Powers of Criminal Courts (Sentencing) Act Subsection (1) defines a curfew requirement as a requirement that the offender must remain at a place specified by the court for certain periods of time. By subsection (2), the periods of time must not be less than two hours or more twelve hours in any given day. The order might, for example, require the offender to stay at home during the evening and night hours. Subsections (3) to (5) limit the curfew period(s) for community orders, custody plus orders and intermittent custody orders, respectively. Under subsection (6) the court must obtain and consider information about the place specified in the order and the attitude of persons likely to be affected by the presence of the offender.
Clause 196: Exclusion requirement
489. This clause re-enacts, with some modification, section 40A of the Powers of Criminal Courts (Sentencing) Act (inserted by section 46 of the Criminal Justice and Court Services Act 2000). That provision has not yet commenced. Subsection (1) defines an exclusion requirement as a requirement prohibiting the offender from entering a place during a period specified in the order. Subsection (3) makes it clear that the order may stipulate that the prohibition operates only for certain periods of time and may specify different places for different periods. By subsection (2) an exclusion requirement cannot last longer than two years. Under subsection (4) the order can specify an area rather than a specific place. For example, an offender might be required to stay away from a specified town centre at night.
Clause 197: Residence requirement
490. The residence requirement is based on the existing requirements as to residence that can be included in a community rehabilitation order (see paragraph 1 of Schedule 2 to the Powers of Criminal Courts (Sentencing) Act 2000). Subsection (1) defines residence requirement as a requirement that the offender must reside at a place specified in the order for a specified period. Under subsection (2) the court can allow the offender to live at an alternative address, with the approval of his responsible officer. Under subsection (3), before making a residence requirement the court must consider the situation at the offender's accommodation. Subsection (4) provides that the court must only place the offender in a hostel or similar accommodation with the recommendation of an officer of the local probation board.
Clause 198: Mental health treatment requirement
491. The mental health treatment requirement is based on the requirements as to treatment as part of a community rehabilitation order (paragraph 5 of Schedule 2 of the Powers of Criminal Courts (Sentencing) Act 2000). Subsection (1) provides for the court to direct an offender to undergo mental health treatment for certain period(s) as part of a community sentence or suspended sentence order, under the treatment of registered medical practitioner or chartered psychologist. Subsection (2) provides that treatment may be provided in an independent hospital or care home (within the meaning of the Care Standards Act 2000) or a hospital (within the meaning of the Mental Health Act 1983), or as a non-resident patient at a place specified in the order, or as treatment under the direction of such registered medical practitioner or chartered psychologist as specified in the order. Under subsection (3), before including a mental health treatment requirement, the court must be satisfied that the mental condition of the offender requires treatment and may be helped by treatment, but is not such that it warrants making a hospital or guardianship order (within the meaning of the Mental Health Act 1983). The court must also be satisfied that arrangements can be made for the offender to receive treatment as specified in the order, and the offender's consent must be obtained before imposing the requirement.
492. Under subsection (4), the offender's responsible officer will supervise him only to the extent necessary for revoking or amending the order. Subsection (5) applies section 54(2) and (3) of the Mental Health Act 1983 for the purposes of the clause. Subsection (6) defines "chartered psychologist".
Clause 199: Mental health treatment at place other than that specified in order
493. Subsection (1) provides for the medical practitioner or chartered psychologist to decide that treatment would be better or more convenient in a different place from that specified in the order and make arrangements to change the place of treatment. The change cannot be made without the consent of the offender. Under subsection (2) the offender can be placed in residential treatment, even if the institution was not one that could have been specified for that purpose in the original order. Arrangements for informing appropriate people are set out in subsection (3).
Clause 200: Drug rehabilitation requirement
494. As part of a community sentence or suspended sentence the court may impose a drug rehabilitation requirement, which includes drug treatment and testing. In order to impose such a requirement, the court must be satisfied that the offender is dependent on or has a propensity to misuse any controlled drug and as such requires and would benefit from treatment. In addition, the court must be satisfied that the necessary arrangements are or can be made for the treatment and that the offender has expressed a willingness to comply with the drug rehabilitation requirement. The treatment provided may not be for a period of less than six months. A suitably qualified or experienced individual supervises the treatment. It is for the court to decide whether treatment should be residential or non-residential. The Secretary of State may provide guidance as to the arrangements for testing.
Clause 201: Drug rehabilitation requirement: provision for review by court
495. Subsection (1) provides that the court may provide for the review of any drug treatment and testing requirement, and it must provide for the review of any drug treatment and testing requirement lasting more than 12 months. The reviews cannot take place more frequently than once a month. The review occurs at a "review hearing", at which the offender is present. The responsible officer is to provide a written report on the offender's progress before each hearing, which is to include the results of the offender's drug tests. A review hearing takes place before the court responsible for the order. Subsections (2) to (3) provide that the court responsible for a drug treatment and testing requirement is that court which made the order, unless it specifies a different court in the case where an offender does not live in the area of the court which convicts him. Where the drug treatment and testing requirement was made on appeal from the Crown Court, under subsection (4) the Crown Court will be the responsible court.
Clause 202: Periodic review of drug rehabilitation requirement
496. This clause provides for what occurs at a review of a drug rehabilitation requirement. Subsection (1) provides for the court to amend the order as respects that requirement after considering the responsible officer's report. Subsection (2) prevents the court from amending the requirement unless the offender consents. It cannot reduce the term of treatment and testing below the minimum specified in clause 200(3) (i.e. six months). Unless the offender's consent is obtained the court cannot amend a requirement while an appeal against the order is pending. Under subsection (3), if the offender does not consent to amending the order, the court may revoke the order and re-sentence the offender as if he had just been convicted. If it does so, under subsection (4) it must take into account the extent to which the offender has complied with the requirements of the order. If the court wishes, it may sentence the offender to a custodial sentence, providing the offence was punishable with imprisonment. Subsection (5) relates to the powers of a magistrates' court in a case where the offender was under 18 when the order was made, the offence would have been triable only on indictment had it been committed by an adult and the offender has attained the age of 18 by the time of the review hearing. In these circumstances, subsection (5) extends the court's powers where a person has failed to consent to an amendment proposed by the court.
497. If the offender's progress is satisfactory, under subsection (6) the court can state that for future reviews the offender need not be present. Subsection (7) provides that, if an offender's progress is unsatisfactory and he is not present, the court can require the offender to attend a future hearing. Under subsection (8) at that hearing the court may exercise the powers that it has in the case of a review hearing. It may also amend the order to provide for future review hearings. Subsection (9) explains what is meant by "court" in this clause.
Clause 203: Alcohol treatment requirement
498. Alcohol treatment is currently available as part of a community rehabilitation order, under paragraph 6 of Schedule 2 of the Powers of Criminal Courts (Sentencing) Act. Under subsection (1) the court can require the offender to undergo alcohol treatment. The treatment must be by or under the direction of a person who is qualified or experienced to reduce or eliminate the offender's dependency on alcohol. This person is to be identified in the order. Subsection (2) requires that the court be satisfied that the offender is dependent on alcohol, that his dependency requires and is susceptible to treatment, and that arrangements can be made for treatment. Subsection (3) requires the court to obtain the offender's consent before imposing an alcohol treatment requirement. Subsection (4) states that an alcohol treatment requirement must last at least six months. Under subsection (5) the treatment itself must consist of either residential or non-residential treatment in a place the court decides, or by or under a qualified or experienced person whom the court identifies in the order.
Clause 204: Supervision requirement
499. Supervision is a central part of community rehabilitation orders imposed under section 41 of the Powers of Criminal Courts (Sentencing) Act. The responsible officer might review with the offender his supervision plan, challenge his offending behaviour, hold him to account on the requirements, monitor his progress, and assist him with various problems, such as accommodation, employment, or finance. Subsection (1) provides that the court can oblige the offender to meet with his responsible officer, or someone else specified by the responsible officer, or attend a community rehabilitation centre as required. Subsection (2) states that a supervision requirement is for the purpose of rehabilitation. Subsection (3) sets the length of the supervision requirement for the different orders.
Clause 205: Attendance centre requirement
500. Attendance centre orders are currently free standing orders for certain young offenders, under Chapter 4 of the Powers of Criminal Courts (Sentencing) Act. At an attendance centre, practical activities, including sport, can be run to occupy offenders for a certain number of hours to keep them out of trouble. This is often on Saturdays as attendance centres were originally set up for football related offenders. Subsection (1) enables the court to require an offender to attend an attendance centre for a specified number of hours. Subsection (2) requires the total number of hours an order may specify to be between 12 and 36. Under subsection (3) the court must be satisfied that the offender can get to the centre and must consider the circumstances of the offender when making the appointments. Subsection (4) provides that the first appointment is to be set by the responsible officer, and under subsection (5) any subsequent appointments are to be made by the person in charge of the centre. Subsection (6) provides that the offender cannot be required to attend more than once a day or for more than three hours on any one day.
Clause 206: Electronic monitoring requirement
501. The court can order the electronic monitoring of the compliance of an offender with any of the other requirements set out in the order. Electronic monitoring has been available throughout England and Wales since 1999, following a series of pilot projects which operated in selected areas during the previous ten years.
502. In almost all cases of electronic monitoring, the technical equipment uses radio frequency transmissions. It consists of a transmitter (the "tag"), which is usually worn round the ankle, and a receiver unit which is either connected to a landline telephone or which incorporates mobile phone technology. The receiver unit communicates with a central computer system at a monitoring centre. The transmitter sends signals to the receiver at regular intervals and these are sent on to the central computer. The signal strength of the transmitter is calibrated to the receiver so that if the subject goes out of range (generally this means outside the building where the receiver is located), there is a break in signal and this is also registered by the central computer which generates follow-up action. The transmitter can be removed only by breaking its strap. This interferes with the fibre-optic circuitry inside the strap and is immediately registered as a tamper, also generating follow-up action.
503. Under the existing law electronic monitoring can be used as part of home detention curfew (see clause 236), curfew orders (which will be replaced for adults by community orders with curfew requirements), bail (12-16 year olds throughout England and Wales, and 17 year olds in specified areas), and detention and training orders (under 18s).
504. Subsection (1) enables the court to set an electronic monitoring requirement to ensure an offender's compliance with other requirements in the order. The period(s) of electronic monitoring can be set by the court or the responsible officer. Under subsection (2), if another person's compliance is needed to effect the electronic monitoring, that person's consent must be obtained before the order is made. This person might include a landlord. Subsections (3) and (4) set out administrative arrangements surrounding electronic monitoring, and in particular deal with the notification of the requirement by the responsible officer to the relevant parties. Subsection (3) gives the Secretary of State an order making power to specify a description of a person responsible for electronic monitoring. This is left to delegated legislation as changes in the description of electronic monitoring providers will be required from time to time. For example new types of electronic monitoring technologies are being developed which may necessitate changes in the description of providers.
Clause 207: Petty sessions area to be specified in relevant order
505. This clause provides that a petty sessions area in which the offender will live must be specified in the case of community orders and suspended sentence orders, and for the supervision periods of short custodial sentences and intermittent custody. This means that where an offender is sentenced in an area in which he does not reside, his home area will have to be specified in the order.
Clause 208: Requirement to avoid conflict with religious beliefs, etc.
506. Subsection (1) requires the court to try to avoid, as far as practicable, making any order which clashes with an offender's religious beliefs, or with the times of his education or employment. Subsection (2) applies the same requirement to any instructions the responsible officer is to give during the course of the order. Under subsection (3) the Secretary of State has the power to add further restrictions by order. Additional restrictions may be required in the light of the experience of operating the new sentencing framework. For example, it may become necessary to introduce additional restrictions on the making of orders for offenders with particular domestic responsibilities if it were found that the new sentences were interfering with their caring responsibilities.
Clause 209: Availability of arrangements in local area
507. This clause obliges the court to ensure that certain requirements are available in the local area before imposing them. Under subsection (1) unpaid work is one such requirement. Subsection (2) applies the obligation to an activity requirement, and subsection (3) to an attendance centre requirement. Subsections (4) to (8) prevent a court from imposing an electronic monitoring requirement unless the Secretary of State has notified the court that electronic monitoring is available and can be provided in the relevant areas.
Clause 210: Provision of copies of relevant orders
508. The court has to provide copies of the order it makes to certain people who are relevant to the carrying out of the order. Subsection (1) requires the court to provide copies to the offender, an officer of a local probation board assigned to the court (if an offender is over 18) or an officer of a local probation board assigned to the court or a youth offending team member if the offender is 16 or 17. Where the order specifies another petty sessions area the court must send a copy to the local probation board in that area. Subsection (2) introduces Schedule 11, which contains a list of persons to whom copies of the order must be given depending on what requirements are included in the order. Under subsection (3) if an offender will be carrying out the order in a different area, the court will have to send a copy of the order to the magistrates' court in that area as well as to the local probation board in that area. Any other documents and information relating to the case that the court thinks the second court would find necessary it must send to that court.
Clause 211: Duty of offender to keep in touch with responsible officer
509. An offender must keep in touch with his responsible officer, in accordance with any instructions in that regard from the responsible officer. The offender must also notify the responsible officer of any change of residence. Under subsection (2), if the offender does not keep in touch as required, or if he changes his residence without notifying the responsible officer, he is liable to breach proceedings.
Clause 212: Provision of attendance centres
510. This clause re-enacts section 62 of the Powers of Criminal Courts (Sentencing) Act 2000, which enables the Secretary of State to provide attendance centres and make arrangements with local authorities and police authorities regarding premises to be used. Subsection (2) defines attendance centres.
Clause 213: Rules
511. This clause gives the Secretary of State the power to regulate a number of aspects of the different requirements. These are: the supervision of offenders subject to relevant orders; the functions of responsible officers, arrangements for unpaid work; providing and managing attendance centres and community rehabilitation centres; the attendance of offenders (including attendance records) at activity requirements, attendance centre requirements or supervision requirements; electronic monitoring; the duties of the people responsible for delivering electronic monitoring. Subsection (2) specifies that in particular, these rules might limit the number of hours of unpaid work to be done on any one day, the reckoning of hours worked and the payment of expenses involved in unpaid work.
512. This is left to delegated legislation given the need for flexibility and the level of detail that is likely to be required. It is intended that any rules under this section will be based on consultation with practitioners.
Clause 214: Power to amend limits
513. Various of the requirements described in the previous paragraphs have limits attached to them. A person cannot be required to do more than 300 hours of unpaid work, for example. This clause gives the Secretary of State the power to amend certain limits by order. This is left to delegated legislation as amendments may be desirable in the light of experience. The Secretary of State currently has this power relating to community sentences.
Chapter 5: Dangerous offenders
Clause 215: Meaning of "specified offence" etc
514. This clause defines 'specified offence' and 'serious offence' for the purposes of this Chapter. Specified offences are those sexual or violent offences listed in Schedule 12 (all of which carry a maximum sentence of 2 years or more). A serious offence is defined as a specified sexual or violent offence which carries a maximum penalty of ten years or more (including life). This clause also defines various other terms for the purposes of this Chapter.
Clause 216: Life sentence or imprisonment for public protection for serious offences
515. Clause 216 provides for a new sentence of imprisonment for public protection, which is an indeterminate sentence. This sentence may only be passed by a court if the offender is convicted of a specified sexual or violent offence (listed in Schedule 12) carrying a maximum sentence of ten years or more and the court considers that the offender poses a significant risk of serious harm as defined in subsection (1)(b). Subsection (2) sets out that where the offence carries a maximum sentence of life imprisonment, the court must pass a discretionary life sentence if the seriousness of the offence justifies it. In all other cases to which the clause applies, subsection (3) requires the court to impose a sentence of imprisonment for public protection. When passing sentence the court must set the relevant part of the sentence that must be served in custody for the purposes of punishment and deterrence. After the offender has served this relevant part then their release will be dependent upon the recommendation of the Parole Board. This sentence therefore provides for the indeterminate detention of those dangerous offenders who continue to pose a significant risk of harm to the public. Release provisions for this sentence are set out in more detail in clause 221 and Schedule 15.
Clause 217: Detention for life or detention for public protection for serious offences committed by those under 18
516. Clause 217 applies the sentence of public protection to those aged under 18 although for juveniles it is a sentence of detention rather than imprisonment. As in the case of adults, the sentence may be passed by a court if the offender is convicted of a specified sexual or violent offence carrying a maximum sentence of ten years or more and the court considers that the offender poses a significant risk of serious harm as defined in subsection (1)(b). Subsection (2) sets out that, where the offence carries a maximum sentence of detention for life under section 91 of the Sentencing Act, the court must pass such a sentence, if the seriousness of the offence justifies it. In other cases, subsection (3) requires the court to choose between a sentence of detention for public protection or an extended sentence under clause 217. It will impose a sentence of detention for life if it thinks that the latter is not adequate to protect the public.
Clause 218: Extended sentence for certain violent and sexual offences: persons 18 or over
517. This clause replaces the current provisions for extended sentences for sexual and violent offenders contained in section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The clause makes provision for the extended sentence for certain violent and sexual offences and sets out the conditions which must be met in order for this sentence to be passed. These conditions require that the offender is over 18, has committed a specified sexual or violent offence (listed in Schedule 12) carrying a maximum sentence of less than ten years and is judged by the court to pose a significant risk of serious harm to the public as defined in subsection (1)(b). If these conditions are met then subsection (2) requires the court to pass an extended sentence. Subsection (2) also provides that the extended sentence is made up of the "appropriate custodial term" and an "extension period". The appropriate custodial term is defined in subsection (3) as the period that the court considers to reflect the seriousness of the offence committed (subject to a minimum of 12 months). During the second half of the appropriate custodial term the offender may be released on the recommendation of the Parole Board (see clause 237). The court must also specify an extended period of supervision on licence to be added to the sentence for the purpose of public protection. The court may add an extension period of up to five years for violent offenders and eight years for sexual offenders (see subsection (4)). The total term of the extended sentence must not be more than the maximum sentence for the offence in question (subsection (5)).
Clause 219: Extended sentence for certain violent or sexual offenders: persons under 18
518. Clause 219 applies the extended sentence to those aged under 18 whom the court considers to pose a significant risk of serious harm as defined in subsection (1)(b). The court may impose the extended sentence on those convicted of serious specified offences and must impose it on those convicted of other specified offences. The sentence operates in the same way as it does for adults, but is a sentence of detention rather than imprisonment.
Clause 220: The assessment of dangerousness
519. This clause outlines the assessment of dangerousness required for the court to establish whether the offender poses a 'significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'. The risk criteria are based on the existing provisions at section 161(4) of the Powers of Criminal Courts (Sentencing) Act 2000. When making this assessment the court must take into account all the information available to it about the nature and circumstances of the offence and it may also take into account any information about the pattern of behaviour of which the offence forms a part. Subsection (3) states that in cases where an offender is aged 18 or over and has a previous conviction for a relevant offences (as defined by subsection (4) they will be assumed to be dangerous, unless the court considers on the basis of the evidence before it this assumption to be unreasonable. For the purposes of the provision in subsection (3), subsection (4) provides the definition of a relevant offence. This includes any specified offence in Schedule 12 and equivalent sexual or violent offences committed in Scotland or Northern Ireland, which are listed in Schedules 13 and 14.
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